The turning tide against workplace transgender discrimination

The turning tide against workplace transgender discrimination

Transgender rights are a hot topic in the news recently, from Trump’s slapdash ban on transgender soldiers in the military to the question of whether Title VII of the 1964 Civil Rights Act includes gender identity under the umbrella of sex discrimination.

In February, the Second Circuit Court of Appeals, covering Connecticut, New York and Vermont, ruled that discrimination based on sexual orientation is an actionable form of sex discrimination under Title VII. The decision was heard by the full panel of 13 judges in the case of Zarda v. Altitude Express, Inc., in which Donald Zarda worked in 2010 until his firing due to his sexual orientation.

The panel determined that sexual orientation is a subset of sex discrimination in three ways: 1) Orientation is a subset of sex. To determine same-sex attraction, one must consider the sex of the person whose attraction is being considered. 2) Discrimination of sexual orientation involves sex stereotyping. Presuming someone’s orientation is a fireable offense is to presume same-sex attraction is less than opposite-sex attraction, much the same way a woman fired for her gender is inferior in some way to a man. 3) It constitutes associational discrimination, which courts have recognized in cases of racial discrimination. For example, if a white man is fired because he is married to a black woman, his termination is deemed racial discrimination. If it is discrimination to target one person in an interracial couple, by correlation, it is sex discrimination to target one member of a same-sex couple.

By ruling sexual orientation is a subset of sex discrimination, the Second Circuit Court of Appeals has helped the plaintiffs filing transgender discrimination lawsuits define the argument that gender identity is a subset of sex, because those same three factors apply.

In early April, Chief Judge of the Southern District of Texas Lee Rosenthal held in a federal-court decision that the federal employment law protecting against sex discrimination applies to gender identity. In the case, Wittmer v. Phillips 66, the plaintiff, Nicole Wittmer, alleged she wasn’t hired by Phillips 66, an energy company, because she’s transgender. While Rosenthal ruled against Wittmer overall, he made it clear in his opinion that it wasn’t because the argument lacked merit, but because Wittmer lacked the proof needed to unequivocally attribute the reason for not being hired to her transgender status. Rosenthal further stated: “Within the last year, several circuits have expanded Title VII protection to include discrimination based on transgender status and sexual orientation. Although the Fifth Circuit has not yet addressed this issue, these very recent circuit cases are persuasive … The court assumes that Wittmer’s status as a transgender woman places her under the protections of Title VII.”

While the case in Texas isn’t definitive, the Sixth Circuit Court ruling in Stephens v. R.G. & G.R. Harris Funeral Homes, Inc., is — for now. The Sixth Circuit, which oversees cases in Michigan, Ohio, Kentucky and Tennessee, delivered a one-two punch to the defense of gender-identity discrimination cases, not only siding with Stephens, but striking down the funeral-home director’s argument that the Religious Freedom Restoration Act (RFRA) protected his religious belief to fire someone for being transgender.

Aimee Stephens, a transgender woman, worked at the funeral home for six years, presenting as her birth gender until 2013. She sent a letter to the owner of the funeral home detailing her intention to undergo sex-reassignment surgery, which required her to live and work as her identified gender for one year. Upon learning of not only Stephens’ transgender status but her intention to transition to a woman, she was fired. The funeral home’s owner justified his decision by stating his belief that the Bible teaches that biological sex is immutable, and that he would be in violation of his religion if he permitted Stephens to continue her employment as a “male dressed as a female.” He further argued that because its activities are religious due to the nature of its business, it would have put an undue burden on the patrons of the funeral home by creating a distraction for a deceased’s loved ones and hinder their healing process.

Lawyers for the funeral home argued not only that Stephens wasn’t protected under Title VII, but that by forcing him to continue her employment, his religious freedom was infringed upon. A lower court found in favor of the funeral home and Stephens appealed to the Sixth Circuit, which overruled the lower court’s decision.

The court held that Stephens’ firing was discriminatory under Title VII protections, and that the RFRA arguments didn’t carry sufficient burden on the funeral home. The RFRA protects employers should their religious exercise be burdened. The court defined a difference between “religious exercise” and “religious belief.”

The opinion cited discrimination on the basis of being transgender or transitioning status is, by necessity, determined on sex. Furthermore, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The ruling went on to state that sex stereotyping, long held unlawful under the statute, was implicated by the claim that Stephens’ transgender status was somehow problematic to the funeral homes’ patrons.

The court further rejected the assertion concerning customers, stating, “[a] religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA,” going on to say there was no factual evidence presented by the funeral home that customers would have been distracted or hindered by Stephens presenting as a female employee. The court continued by rejecting the argument that religious freedoms were infringed upon. By tolerating Stephens’s understanding of her gender identity, the owner of the funeral home wasn’t required to support it; he may have believed he was being forced into engaging in conduct that would have violated his religious beliefs without having truly been engaged in supportive conduct.

Providing employment to a transgender woman does not equal support for that woman’s transgender identity or decision to transition through hormone therapy or sex-affirmation surgery. Providing employment to a transgender woman simply means that she is qualified for the funeral director’s responsibilities and duties, the court held.

With two federal circuit courts ruling that Title VII provides protections for sexual orientation and gender identity, and a third federal judge ruling the argument has merit even if the particular case didn’t provide proof of discrimination, a trend has been set. If the funeral home appeals the Sixth Circuit’s ruling, the case will go before the Supreme Court before we know it and, for better or worse, it will set precedent that will govern employment rights of the transgender community in the United States.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in New Jersey and Pennsylvania and specializes in LGBT law, family law, business law, real-estate law and civil rights. Her website is www.giampololaw.com, and she maintains a blog at www.phillygaylawyer.com. Reach out to Angela with your legal questions at 215-645-2415 or This email address is being protected from spambots. You need JavaScript enabled to view it..